ITO, WD-32(3), KOLKATA, Kolkata V. Smt Sukhjeet Bhasin, Kolkata

ITA 182/KOL/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6607 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 08-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALLONG YADEN ADD
• Assessee Lawyers: MRS DISHA KEDIA

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NOS. 182/KOL/2016 ASSESSMENT YEAR: 2011-12 INCOME-TAX OFFICER, WD-32(3), KOLKATA. VS. SMT. S UKHJEET BHASIN (PAN: ADXPB0016H) APPELLANT RESPONDENT DATE OF HEARING 12.06.2018 DATE OF PRONOUNCEMENT 27.06.2018 FOR THE APPELLANT SHRI SALLONG YADEN, ADD. CIT FOR THE RESPONDENT MRS. DISHA KEDIA, AR ORDER PER SHRI A.T.VARKEY, JM THIS APPEAL PREFERRED BY THE REVENUE IS AGAINST THE ORDER OF THE LD. CIT(A)-9, KOLKATA DATED 04.11.2015 FOR ASSESSMENT YEAR 2011-1 2 AGAINST THE DELETION OF PENALTY LEVIED U/S. 271E OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL OF REVENU E IS AGAINST THE ORDER OF LD. CIT(A) IN DELETING THE PENALTY LEVIED U/S. 271E OF THE ACT . 3. BRIEFLY STATED FACTS AS OBSERVED BY THE AO ARE THAT THE ASSESSEE HAD TAKEN LOANS FROM M/S. SIGMA CONSTRUCTION, WHICH IS A PROPRIETARY CON CERN OF HER HUSBAND. IT WAS ALSO FOUND BY THE AO THAT THE OPENING BALANCE OF THE UNSECURED LOANS SO OBTAINED BY THE ASSESSEE FROM M/S. SIGMA CONSTRUCTION COMES TO OVER RS.1.32 CR. A ND THE SAID AMOUNT BY THE END OF THE ASSESSMENT YEAR UNDER CONSIDERATION HAD MOUNTED TO ALMOST RS.2.73 CR. THE AO FURTHER OBSERVED THAT DURING THE YEAR, THE ASSESSEE HAD MAD E PAYMENTS IN CASH, IN EXCESS OF RS. 20,000/- BY WAY OF LABOUR CHARGES ON BEHALF OF M/S. SIGMA CONSTRUCTION. ACCORDING TO AO, EVERY SUCH PAYMENT RESULTED IN A CORRESPONDING DECR EASE IN THE AFOREMENTIONED LOAN AMOUNT IN THE RESPECTIVE BOOKS OF THE TWO CONCERNS. ACCORD ING TO AO, THESE PAYMENTS BY THE 2 ITA NO.182/KOL/2016 SMT. SUKHJEET BHASIN, AY 2011-12 2 ASSESSEE TO M/S. SIGMA CONSTRUCTION IS LOAN REPAYME NT IN CASH, WHICH IN EXCESS OF RS. 20,000/- ATTRACTS THE MISCHIEF OF SEC. 269T OF THE ACT. AND SINCE PENALTY WITHIN THE PURVIEW OF SEC. 269T IS IMPOSABLE U/S. 271E OF THE ACT, PEN ALTY PROCEEDINGS U/S. 271E WERE INITIATED. IN REPLY, ASSESSEE SUBMITTED BEFORE THE AO THAT THE TRANSACTION IS NOT AT ALL A REPAYMENT OF LOAN. IT WAS ALSO SUBMITTED THAT THE TRANSACTIONS WERE BETWEEN SISTER CONCERNS AND, THEREFORE, NOT COVERED U/S. 269T OF THE ACT. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE, THE AO CONCLUDED THAT THESE PAYMENTS ARE IN THE NATURE OF CASH REPAYMENTS OF LOAN BY THE ASSESSEE. ACCORDING TO AO, THE TWO CONCERNS IN QUESTION CANNOT BE CONSIDERED AS SISTER CONCERNS JUST BY VIRTUE OF THE FACT THAT THE Y ARE PROPRIETARY CONCERNS OF HUSBAND AND WIFE. THEREFORE, THE AO IMPOSED PENALTY OF RS. 49, 16,050/- U/S. 271E OF THE ACT FOR FAILURE TO COMPLY WITH THE PROVISIONS OF SEC. 269T OF THE A CT. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO FOLLOWING THE ORD ER OF TRIBUNAL IN ASSESSEES HUSBANDS CASE DIRECTED TO DELETE THE PENALTY LEVIED BY OBSER VING AS UNDER: 4. THERE IS ONLY ISSUE INVOLVED IN ALL THE GROUND S OF APPEAL WHICH RELATES TO LEVY OF PENALTY U/S. 271E OF THE I. T. ACT, 1961. THIS ISSUE HAS B EEN ADJUDICATED BY ITAT IN ITA NO.1016/KOL/2003 IN THE APPELLANTS HUSBAND (MR. AS HOK KUMAR BHASINS) CASE FOR THE AY 1998-99, THEREFORE, ON IDENTICAL FACTS, FOLLOWING T HE DECISION OF ITAT, THE AO IS DIRECTED TO DELETE THE PENALTY LEVIED. AGGRIEVED, REVENUE IS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE NOTE THAT THE LD. CIT(A) HAS GIVEN RELIEF TO THE ASSESSEE AFTER TAKING NOTE OF THE TRIBUNALS DECISION IN SIMILAR FACTS AND CIRCUMSTAN CES OF THE CASE AS THAT OF THE ASSESSEE. WE ALSO NOTE THAT IN THE ASSESSEES HUSBANDS CASE (SUPRA) ALSO SAME SET OF FACTS EXISTED AND SIMILAR PENALTY WAS LEVIED U/S. 271E OF THE ACT. W E NOTE THAT THE LD. CIT(A) TAKING NOTE OF THE TRIBUNALS DECISION, CITED SUPRA, APPLYING THE SAME LOGIC AND RATIO HAS GIVEN RELIEF TO THE ASSESSEE. THE LD. DR COULD NOT BRING OUT ANY CHANG E IN FACTS OR LAW AS THAT OF THE ASSESSEES HUSBANDS CASE AND THAT OF THE ASSESSEE S CASE BEFORE US. SO, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES H USBANDS CASE, WE ARE NOT INCLINED TO 3 ITA NO.182/KOL/2016 SMT. SUKHJEET BHASIN, AY 2011-12 3 INTERFERE WITH THE ORDER OF THE LD. CIT(A) AND THE SAME IS HEREBY UPHELD. APPEAL OF REVENUE IS DISMISSED. 5. IN THE RESULT, THE APPEAL OF REVENUE IS DISMISSE D. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27.06.2018 SD/- SD/- (DR. A.L. SAINI) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED :27TH JUNE, 2018 JD(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1. APPELLANT ITO, WARD-32(3), KOLKATA 2 RESPONDENT SMT. SUKHJEET BHASIN 52A, SHAKESPEAR E SARANI, KOLKATA- 700 017. 3. THE CIT(A) - 9, KOLKATA (E-MAILED) 4. 5. CIT , KOLKATA DR, ITAT, KOLKATA. (E-MAILED) / TRUE COPY, BY ORDER, SR. PVT. SECRETARY